State v. Woodward, 4875-2-II

• Decision Date: 20 May 1982
• Docket Number: No. 4875-2-II,4875-2-II
• Citation: 32 Wn.App. 204,646 P.2d 135
• Parties: The STATE of Washington, Respondent, v. Richard WOODWARD, Appellant.
• Court: Washington Court of Appeals

Page 204

32 Wn.App. 204

646 P.2d 135

The STATE of Washington, Respondent, v. Richard WOODWARD, Appellant.

No. 4875-2-II.

Court of Appeals of Washington, Division 2.

May 20, 1982.

Ronald E. Thompson, Tacoma, for appellant.

Don Herron, Pros. Atty. for Pierce County, Michael Johnson, Senior Deputy Pros. Atty., Tacoma, for respondent.

PETRICH, Acting Chief Judge.

Defendant, Richard Woodward, appeals his conviction of first degree statutory rape. His assignments of error raise four issues: (1) Whether statements made by the victim were properly admitted as excited utterances under ER 803(a)(2); (2) whether the victim was competent to testify; (3) whether evidence of another possible cause of injury was properly excluded; and (4) whether a mistrial should have been declared because of newspaper publicity during the trial. We affirm.

The defendant lived across the street from the 51/2-year-old girl victim. The testimony indicated the incident occurred at defendant's house on September 9, either in the late morning or early evening. The child had visited him there once or twice on September 9. Over defendant's objection the child's mother was allowed to testify that at approximately 3 p. m. on September 10, she noticed her daughter sitting in her living room, crying. When she asked what was wrong, the daughter said she could not tell because the defendant would kill her. Following more questions from her mother the child described defendant as having sexual intercourse with her. The mother immediately examined the child's pubic area, and observed redness and spotting on her underwear, red in color. The mother also testified that when defendant entered her house a short time later, her daughter hit defendant and said: "I told my mom what you did to me last night." Over defendant's objection the child was permitted to testify, the court having determined in a pretrial hearing that she was competent.

The trial court found, and we agree that the mother's testimony was admissible on the grounds the statements were spontaneous utterances not prompted by any extraneous influences from the mother. An excited utterance is a recognized exception to the hearsay rule. ER 803(a)(2). The declaration must be a natural declaration of fact relating to the event. The statement must be made by one who participated in or witnessed the event, and must be spontaneous and made while under the influence of the event. Beck v. Dye, 200 Wash. 1, 92 P.2d 1113, 127 A.L.R. 1022 (1939). In Johnston v. Ohls, 76 Wash.2d 398, 457 P.2d 194 (1969) the court stressed that:

The crucial question in all cases is whether the statement was made while the declarant was still under the influence of the event to the extent that his statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.

Johnston v. Ohls, 76 Wash.2d at 406, 457 P.2d 194.

We are concerned here with the spontaneity requirement. The record indicates the events occurred at least 20 hours before the child's statements to her mother. She did not complain to her mother on September 9, although she did complain of pain to her babysitter on the evening of September 9. This 20 hours was a substantial lapse of time, and the child did engage in different activities between the event and disclosure to her mother, including attendance at the fair; however, these factors alone did not take the statements out of the hearsay exception.

Considering the child's tender age, her physical condition, and the fact she was laboring under a threat of further violence, we think the possibility that this 51/2-year-old fabricated the related facts was remote. The record contains no indications of intervening influences which demonstrate the unreliability of the child's statements. The trial court did not abuse its discretion in admitting the mother's testimony. See generally State v. Bouchard, 31 Wash.App. 381, 639 P.2d 761 (1982); State v. Canida, 4 Wash.App. 275, 480 P.2d 800 (1971).

Defendant challenges the court's ruling on the child's competency to testify. She was 6 years old at the time of trial. To support a finding of competency the trial court must be satisfied the child witness possesses the following:

(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967), see also CrR 6.12(c).

The trial judge carefully examined the child and received intelligent answers from her. She indicated to the court she would be spanked if she lied, and could identify a lie. Although the testimony of the child at trial was not entirely consistent on certain details, she was unwavering in her testimony that defendant had intercourse with her. Nothing in the record suggests the trial court abused its discretion in ruling the child was competent. See State v. Sims, 4 Wash.App. 188, 480 P.2d 228, rev. den. 79 Wash.2d 1002 (1971); State v. Johnson, 28 Wash.App. 459, 624 P.2d 213 (1981), aff'd 96 Wash.2d 926 (1981). Any inconsistencies in her testimony went to her credibility and not to admissibility.

Defendant next assigns error to the trial court's exclusion of evidence offered to show an alternative cause of the child's redness. The proposed evidence was testimony from defendant and another observer who would testify that approximately two weeks before the incident they saw the child playing with a dog, which was molesting her. They observed the dog "licking ... and riding" the child. The trial court excluded the evidence because it invited the jury to speculate and was irrelevant.

In State v. Demos, 94 Wash.2d 733, 619 P.2d 968 (1980), the court described relevant evidence:

All facts which support a reasonable inference on a contested matter and any circumstance whereby an alleged fact may be proved or disproved are relevant. Any circumstance is relevant which reasonably tends to establish the theory of a party or to qualify or disprove the testimony of his adversary.

State v. Demos, supra at 736, 619 P.2d 968 quoting from Ladley v. St. Paul Fire & Marine Ins. Co., 73 Wash.2d 928, 442 P.2d 983 (1968). Whether evidence is relevant is a determination which lies within the discretion of the trial court. Defendant could not show that prior physical contact with the dog caused redness or that the child complained of redness following these contacts. He could not show that the dog had any contact with the child less than two weeks before the complaint was lodged. Although evidence tending to establish that defendant did not cause the redness may be relevant, we do not think the trial court abused its discretion in ...